plaintff class action · forjas taurus s.a., taurus intem ational manufacturfng, inc., and taurus...

UNITED STATES DISTRICT COURTSOUTH ERN DISTRICT OF FLORIDA

M IAM I DIVISION

Case No. 1:13-CV-24583-PAS

CHRIS P. CARTER,

lndividually and on behalf of all

others similarly situated,

Plaintff CLASS ACTION

FORJAS TAURU S S.A.,

TAURUS INTEM ATION AL

M ANUFACTURFNG, INC., and

TAURUS HOLDW GS, INC.,

De#ndants./

ORDER GR ANTING JO INT M O TION FOR PRELIM INARY APPROVAL OF CLASSACTION SETTLEM ENT, PRELIM INARILY APPROVING CLASS SETTLEM ENT

AND GRANTING SETTLEM ENT CLASS CERTIFICATION, AND SETTING

FINAL APPROVAL H EARING

THIS MATTER is before the Court on Plaintiftl Chris P. Carter Ctplaintiff '), for himself

and 1he Settlement Class Members (as defined below), and Defendants, Forjas Taunzs, S.A.,

' 1 llectively the çiparties'')Taurus lntemational Manufacturing, lnc. and Taurus Holdings, Inc. s (co

Joint M otion and Supporting M em orandum for Preliminary Approval of Class Action Settlem ent

(the ttMotion'') gDE 1234 and Proposed Class Notice gDE 132j.

Following receipt of the M otion, the Court directed detailed questions regarding the

proposed settlement to the Parties (DE 124, 1251. The Court then further held a hearing on the

Motion on June 23, 2015 g-çt,tl DE 131 (Transcriptl). Counsel and the Claims Administrator were

1 D fendants Forjas Taurus, S.A., Taurus International Manufacturing, Inc. and Taul'use ,Holdings, lnc. are collectively referred to in this Order as Ctthe Taurus Com panies.''

Case 1:13-cv-24583-PAS Document 133 Entered on FLSD Docket 07/30/2015 of 26

present, addressed the Court's questions, and otherwise provided extensive factual support for

the M otion.

After eareftll consideration of the M otion and the record, including the Settlement

Agreement and Release and its exhibits (the lisettlement Agreement'') submitted with the Motion

and the matters addressed at the June 23, 2015 hearing, the M otion is GR ANTED as follows:

Backeround

ln 2013, Plaintiff was a deputy with the Scott County, lowa Sheniff's Department. His

SCWiCC WCaPOn WaS a Personally-owned 2Taunls-branded PT140 M illennium PRO pistol.

Plaintiff alleges that on July 29, 2013, while serving on a narcotics detail, he was forced to

pursue a tleeing suspect on foot. During the pursuit, Plaintiff alleges that his Taurus pistol fell

3 Plaintiff alleges that the pistol discharged onfrom his holster and dropped to the ground.

impact, firing a single round that struck a nearby vehicle. Following this incident, Plaintiff

contacted Todd W heeles, who is one of the attorneys representing him in this ease.

Plaintiff filed his initial complaint on December 20, 2013. After several months of

discovery, Plaintiff tiled his First Am ended Com plaint on Septem ber 22, 2014. Plaintiff asserts

statutory, tort, and warranty-based claims arising from alleged safety defects in the Class

4Pistols.

Plaintiff alleges that the Class Pistols contain two defects (collectively Slsafety Defects'')

attributable to the fact that the Class Pistols a11 lack a lstrigger blade safety.'' (DE 13 1 (Tr. at

2 A PT140 M illennium PRO is a m odel of the PT140 M illermium Taurus-branded pistol.

3 plaintiff was authorized by his department to carry his personally-owned pistol.

4 ca italized ten'ns not otherwise defined in this Order have the m eanings assigned to them in theP

Settlem ent Agreement.


12:19-13:21).) The tsrst is a çddrop-fire defect'' that Plaintiff alleges may eause the pistols to fire

when dropped from a normal height. Plaintiff contends that the drop-fire defect is a common

design defed. The seeond alleged defect is a çûfalse safety defed'' that Plaintiff alleges may

allow a pistol to unintentionally fire even when the manual safety lever is in the tion'' or ûûsafe''

position and the trigger moves rearward.

The Taurus Companies acknowledge that the Class Pistols do not have trigger blade

safeties, but they deny that this results in the alleged common defects, and othenvise deny

Plaintiffs' allegations and claims. As of early 2013, the Class Pistols are no longer manufactured

and distributed in the United States. (DE 13 1 (Tr. 13:1 3-18).)

In addition to Plaintiff s alleged unintended discharge incident,Plaintiff alleges that

others have also experienced unintended discharges. Plaintiff further asserts that there have been

individual suits regarding these incidents as alleged in the Am ended Complaint.

The Parties have aggressively litigated this case and conducted extensive document

production and other discovery. Plaintifps counsel has further deposed three corporate

representatives conceming numerous designated topics. Defendants' counsel has also deposed

Plaintiff. In addition, both before and after the case was tiled, both sides conducted extensive

expert testing. While this testing remains subject to the work product privilege, the extent of it

was described to the Court during the June 23, 2015 hearing. gDE 131 (Tr. at 14:23-19:3).)

Plaintiff's experts conducted approxim ately 500 hours of testing across al1 Class Pistol models.

A. The Settlem ent Negotiations.

W hile aggressively litigating this case and pursuing discovery, the Parties at the same

time engaged in more than ninety hours of anns-length m ediation and settlement negotiations.

This included six separate form al in-person mediation sessions with mediator Rodney M ax of

Upchurch W atson W hite & M ax. M r. M ax was a certified class action mediator in this District


through 2014. These mediation sessions were held in M iami, Birmingham, Fort Lauderdale,

Atlanta, and W ashington, D.C.

During these mediations (and subjed to the mediation privilege) Plaintiff shared his

expert testing and opinions regarding the Safety Defects.The Parties also addressed and debated

class certification issues and the strengths and weaknesses of each side's claims and defenses.

The Parties' counsel further conducted extensive negotiations, both in person and

telephonically, in addition to the several formal mediation sessions. These extensive mediations

and negotiations occurred over the course of several m onths.

B. The Proposed Settlem ent.

The proposed settlement provides Settlement Class M embers with three types of relief -

an enhanced warranty, safety training, and cash paym ents.

Enhanced W arranty. First, Settlement Class M embers willreceive an enhanced

warranty covering their Class Pistols. The Taurus Companies have agreed to modify the

existing Warranty and Repair Policy for a11 Class Pistols to allow any owner (not just the current

owner) to submit a warranty claim at any time (even outside the claims period, for the life of the

pistol, regardless of whether the person submitting the warranty claim is the original owner) to

have the Class Pistol inspected for the alleged Safety Defects and repaired, if possible. If there

are defects that cannot be repaired, the Taurus Companies will offer to replace the Class Pistol

with a similar new pistol.

Also, as part of the enhanced warranty settlem ent benetits, the Taurus Companies are

waiving all their inspection fees and labor charges, including their m inimum charge of

approximately $35.00 normally associated with their existing W arranty and Repair Policy.

The Taurus Companies willalso pay shipping costs, to and from their designated

warranty facility', currently, the wanunty covers only shipping from the warranty facility if


repairs are necessary. The Parties estimate that the shipping costs are between $65.00 and

$85.00 each way.

Safety Training. Second, the Taurus Companies will produce and make available to

Setllement Class M embers speeial and particularized safety training addressing the alleged

Safety Defects and theoperation and handling of the Class Pistols. This safety training will

address proper handling and carrying to avoid dropping a pistol; educate owners conceming the

safety features and safety systems in the Class Pistols; and provide information and instnlctions

on how to properly store, pack, and ship the Class Pistols for return to the Taurus Companies

(should the Settlement Class Member elect to ship a Class Pistolfor warranty repairs or

payments as described below). The safety training will be readily available to all Settlement

Class M em bers on-line through various m eans. A significant benefit of the safety training is to

make Settlement Class M embers aware of the specific alleged Safety Defects.

Cash Payments. Settlement Class M embers may elect to send their Class Pistols back to

the Taurus Com panies in exchange for a cash payment based on the following schedule:

if less than 10,000 Class Pistols are returned, the paym ent for each

returned Class Pistol will be $200;if between 10,001 and 20,000 Class Pistols are returned, the

payment for each returned Class Pistol will be $175;if between 20,001 and 200,000 Class Pistols are returned, the

payment for each returned Class Pistol will be $ l 50; and

d) if more than 200,000 Class Pistols are returned, the payment foreach returned Class Pistol will be less than $ 1 50 and will be equalto $30 M illion divided by the number of Class Pistols returned.

This benefit will be paid on a weighted average so that all Class Pistols subm itted will be

paid the same value. The maximum liability for the cash paym ents benefit is capped at

$30,000,000. The only amounts included in the calculation of the $30,000,000 cap are the cash

paym ents m ade to Settlem ent Class M embers, and the Parties estim ate

reached only if m ore

that the cap will be

than 25% of a11 Settlement Class M embers elect to receive the cash


payment benefh. None of the other settlement benefhs, Class Counsel's fees and expenses, or

daims administration expenses are included in the $30,000,000 cap.

The Parties negotiated the cash paym ent structure and amounts based in large part by

aniving at average retail values of Class Pistols established by industry-accepted publications,

including S.P. Fjestad and Blue Book ofGun Values (36th ed. 2015).

Release. The release the Parties have negotiated is appropriately tailored to the claims

raised in this case and excludes claims for death, personal injury, or damage to property other

than the Class Pistols themselves.

Prelim inarv Approval of the Proposed Settlem ent

The procedure for review of a proposed class action settlem ent is a well-established

three-step process: prelim inary approval, notice, and Gnal approval. N ewberg on Class Actions

j l 3: 10 (5th ed.). The first step is a preliminary, pre-notification hearing to determine whether

the proposed settlement is Sçwithin the range of possible approval.'' f#. j 13:12,. Fresco v. Auto

Data Direct, Inc., No. 03-61063, 2007 WL 2330895, *4 (S.D. Fla. May 14, 2007). i'Preliminary

approval is appropriate where the proposed settlement is the result of the parties' good faith

negotiations, there are no obvious deficiencies and the settlement falls within the range of

reason.'' Smith v. Wm. Wrigley Jr. Co., No. 09-60646, 2010 WL 2401 149, *2 (S.D. Fla. June 15,

2010).

Settlement negotiations that involve arm s-length, infonned bargaining with the aid of

experienced counsel support a preliminary finding of fairness. See Newberg on Class Actions j

13:45 (5th ed.); Manual for Complex Litig. j 30.42 (3d ed.). Further, there is a strong judicial

and public policy favoring the voluntary conciliation and settlement of complex class action

litigation. ln re US. Oil drGas L itig., 967 F.2d 489, 493 (1 lth Cir.1992) Cçpublic policy

strongly favors the pretrial settlement of class action lawsuits.''l; Warren v. City of Tampa, 693

6


F. Supp. 1051, 1054 (M .D. Fla. 1988), aff'd, 893 F.2d 347 (11th Cir. 1989); Access Now, Inc. v.

Claire 's Stores, lnc., No. 00-14017, 2002 WL 1162422, at *4 (S.D. Fla. May 7, 2002). This is

because class action settlem ents ensure class m embers a benefit as opposed to the ilm ere

possibility of recovery at some indefinite tim e in the future.'' In re Domestic Air Transp. , 148

F.R.D. 297, 306 (N.D. Ga. 1993).Accordingly, while district courts have discretion in deciding

whether to approve a proposed settlement, deference should be given to the consensual decision

of the parties so that class mem bers can have an opportunity to determ ine how they wish to

participate. See Warren, 693 F. Supp. at 1060 (affording çlgreat weight to the recommendations

of counsel for the parties, given their considerable experience in this type of litigation'').

Based upon this standard and the above background and facts, the Court makes the

following findings, and it is ORDERED as follows:

For purposes of settlement only, the Court has jurisdiction over the subject matter

of this Action, and over the Parties and the Settlem ent Class.

The Coul't prelim inarily approves the proposed settlement and the Setllement

Agreement. The Court tinds that: (a) the proposed settlement resulted from extensive arms-

length negotiations and was concluded only after Class Counsel had duly investigated the issues

raised by Plaintiff s claims; (b) the proposed settlement of this Action makes available valuable

consideration and is within the range of possible approval; (c) both sides would face significant

risks and expense in continuing to litigate; and (d) the proposed settlement is sufficiently fair,

reasonable and adequate to warrant providing notice of this Action and the proposed settlem ent

to the Settlem ent Class M em bers and holding a full hearing on the proposed setllement.

Prelim inarv Certification the Settlem ent Class

tdlt is well-settled in the Eleventh Circuit that prior to the certification of a class,

and before undertaking any of the analysis under Rule 23, the district court must determine that


at least one named class representative has Article 1lI standing to raise each class claim .'' ln re

Terazosin Hydrochloride, 220 F.R.D. 672, 679 (S.D. Fla. 2004) (citing Prado-steiman ex rel.

Prado v. Bush, 221 F.3d 1266, 1279-80 (11th Cir. 2000); Grffln v. Dugger, 823 F.2d 1476, 1482

(1 1th Cir. 1987:. As discussed above, Plaintiff is the current owner of a Class Pistol, and a11

Class Pistols allegedly suffer from the same Safety Defects relating to lack of a trigger blade

safety. The Court therefore preliminarily finds that Plaintiff has standing to assert the claims at

issue for pup oses of the settlem ent of this Action.

4. For pup oses of settlem ent of this Action, and pursuant to Federal Rule of Civil

Procedure 23, the Court preliminarily certities the following Settlement Class:

A11 Persons or entities of the United States, Comm onwea1th of Puerto Rico, U .S.

Virgin lslands, and Guam who own one or m ore of the following Taurus-branded

fireanus on the date of preliminary approval: PT-I 1 1 M illelmium ; PT-132

M illennium ; PT-138 M illennium ; PT-140 M illennium ; PT-145 M illelm itzm ; PT-

745 M illennium ; PT-609; PT-640; and PT-24/7.

Excluded from the Settlem ent Class are all state, local or federal governments,

bodies or agencies, the District Court Judge and Magistrate Judge to whom the

lawsuit is assigned and any m ember of their staffs and im mediate fam ilies, as well

as a1l persons who validly request exclusion from the Settlement Class.

For puposes of settlement only tand without an adjudication of the merits or a

determination of whether a class should be certified if the settlement is not approved or

otherwise does not become final), the prerequisites for a class action under Federal Rule of Civil

Procedure 23(a) and (b)(3) have been preliminarily satistied:

(a) Numerosity. The Parties have confirmed that 966,335 Class Pistols were sold to

distributors for retail sale in the United States from approximately 1997 through early 2013.5

The Settlement Class therefore appears to be so numerous that joinder of all members is

impracticable. See Fed. R. Civ. P. 23(a)(1); 28 U.S.C. j 1332 t'urisdictional provisions of the

5 As discussed above, Class Pistols are no

States.

longer manufactured and distributed in the United


Class Action Fairness Act requiring that a proposed class have not less than 100 members); see

also Evans v. US. Pipe dc Foundry Co., 696 F.2d 925, 930 (1 1th Cir. 1983) (holding that

éttallthough mere allegations of numerosity are insuffkient to meet this prerequisite, a plaintiff

need not show the precise number of members in the class.''); Fabricant v. Sears Roebuck, 202

F.R.D. 3 10, 3 13 (S.D. Fla. 2001) (finding that Rule 23(a) requires that joinder be impracticable,

not impossible).

(b) Commonality. There appear to be questions of law or fact common to the Settlement

Class for purposes of determ ining whether the proposed settlem ent should be approved. See Fed.

R. Civ. P. 23(a)(2); Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551, 2556 (201 1) (holding

that to m eet the com monality requirement, the plaintiff must demonstrate that the proposed class

members 'lhave suffered the same injury'' and that the claims of all class members ûsdepend upon

a common contention,'' and iteven a single common question will do'' (quoting Gen. Tel. Co. of

5'w. v. Falcon, 457 U.S. 147, 157 (1982))).

Plaintiff alleges several common questions as set fol'th in the Amended Complaint (DE

731, including whether the Class Pistols' common design is defective and whether Defendants

knew about but failed to disclose the Safety Defects. Given the claims at issue and the

infonnation provided to the Court in support of the proposed settlement, the Court prelim inary

finds that the comm onality requirem ent is m et for settlement purposes.

(c) Typicality. Plaintiff's claims appear to be typical of the claims being resolved

through the proposed settlement. See Fed. R. Civ. P. 23(a)(3); Hines v. Widnall, 334 F.3d 1253,

1256 (1 1th Cir. 2003) (internal quotation marks omitted) (finding that typicality çkmeasures

whether a significant nexus exists between the claim s of the nam ed representative and those of

the class at large''); Appleyard v.Wallace, 754 F.2d 955, 958 (1 1th Cir. 1985) (noting ç$a strong

similarity of legal theories will satisfy the typicality requirement despite substantial factual

9


differences'') (disapproved on other grounds by Green v. Mansour, 474 U.S. 64 (1985:; see also

Pop 's Pancakes, Inc. v. NuCO2, Inc. , 251 F.R.D. 677, 683 (S.D. Fla. 2008) (holding the

typicality requirem ent is satisfied where, in proving his own case, (tthe representative plaintiff

(alsol establishes the elements needed to prove the elass members' case'' (eiting Brooks v. S. Bell

Tel. & Tel. Co. , 133 F.R.D. 54, 58 (S.D. Fla. 1990))).

As an owner of a Class Pistol, Plaintiff is a member of the Settlem ent Class, and his

claims and legal theories are typical of the claims of the SettlementClass as a whole for

settlement purposes. Although the Class Pistols include nine different models, Plaintiff claims

that all of them share the sam e alleged two Safety Defects. Accordingly, the Court prelim inarily

finds that the typicality requirement is met for settlement purposes.

(d) Adequacy. Plaintiff appears to be capable of fairly and adequately protecting the

interests of the Settlement Class M embers in connection with the proposed settlement. See Fed.

R. Civ. P. 23(a)(4); Kirkpatrick v. JC. Bradford dr Co., 827 F.2d 718, 726-28 (11th Cir. 1987)

(holding that to meet this requirement, the proposed class representative must not have any

interests antagonistic to those of the other members of the class, and he or she must be

represented by competent counsel); Burrows v. Purchasing Power, LL C, No. 1:12-CV-22800,

2013 WL 10167232, at *3 (S.D. Fla. Oct. 7, 2013) (finding that çtwhat constitutes adequacy is a

question of fact that depends upon the circumstancesof each case and is entnzsted to the

discretion of the trial court'' (citing Kirkpatrick, 827 F.2d at 727)).

Moreover, adequacy of representation under Rule 23(a)(4) tiencompasses two separate

inquiries: (1) whether any substantial conflicts of interest exist between the representatives and

the class; and (2) whether the representatives will adequately prosecute the action.'' Valley Drug

Geneva Pharm., Inc., 350 F.3d 1 18 1, 1 189 (1 1th Cir. 2003) (quotation omitted).

Plaintifps interests do not contlict with the interests of the class as a whole. By actively

10


participating in the investigation and prosecution of this case, Plaintiff has demonstrated his

desire and ability to protect the Settlement Class M embers' interests.

Just as Plaintiff is committed to prosecuting this case, so too are his lawyers. The Court

has reviewed the declarations ft'om Plaintiff s counsel addressing the fadors the Court dimust

consider'' in determining the appointment of class counsel. These factors include ûtg1) the work

counsel has done in identifying or investigating potential claims in the action', g21 counsel's

experience in handling class actions, other complex litigation, and the types of claims asserted in

the action; g3) counsel's knowledge of applicable law;and (4q the resources that counsel will

commit to representing the class.'' Fed. R. Civ. P. 23(g). As set forth in the declaration,

Plaintiff s counsel are experienced class action litigators, have extensive products-liability

experience, and have settled and tried unintended discharge cases against the Taurus Companies.

(DE 123, pp. 97-104 (Ex. B).) For these reasons, the Court is satisfied that the class is

adequately represented by both the named Plaintiff and his counsel.

(e) Predominance. For purposes of detennining whether the Settlement is fair,

reasonable and adequate, the question is whether common questions of law and fact appear to

predominate over questions affecting only individual Settlement Class M embers. See Fed. R.

Civ. P. 23(b)(3); Rutstein v. Avis Rent-A-car Sys., Inc., 21 1 F.3d 1228, 1233 (1 1th Cir. 2000)

(noting that common questions of law or fact predominate over individual questions when the

issues in the class action are subject to generalized proof that applies to the case as a whole); see

also Amchem Products, Inc. v. Windsor, 521 U.S. 591, 623 (1997) (holding that predominance

probes whether the proposed class is sufficiently cohesive to warrant adjudication by

representation); Williams v. Mohawk Indus., Inc. , 568 F.3d 1350, 1357 (1 1th Cir. 2009) (in

deciding whether common issues predominate under Rule 23(b)(3), thefocus is generally on

whether there are common liability issues that may be resolved on a class-wide basis). Rule


23(b)(3) (tdoes not require a plaintiff seeking class certification to prove that each elemengtl of

gherq claim gis) susceptible to classwide proof.'' Amgen Inc. v. Connecticut Ret. Plans dr Trust

Funds, 133 S. Ct. 1 184, 1 196 (201 3) (alterations in original) (internal quotations omitted). Nor

does it require plaintiff to show each class m ember states a valid claim . Sullivan v. DB

Investments, Inc., 667 F.3d 273, 305 (3d Cir. 201 1).

Here, each of Plaintiffs claims center on Defendants' alleged com mon course of conduct

- that Defendants knew about but failed to disclose the alleged defects, owed various duties to

consumers, and breached common warranties - and that the Class Pistols are subject to the

Safety Defects due to a common design. This conduct allegedly resulted in common injury: loss

in value of the Class Pistols. Certitication is appropriate under these circum stances. See id at

298-300. Given the nature of the claim s at issue and the infonnation provided to the Court in

support of the proposed settlem ent, the Court prelim inarily finds that the predom inance

requirem ent is met for settlem ent purposes.

(9 Superiority. For pumoses of settlement, certification of the Settlement Class appears

to be superior to other available methods for the fair and efficient resolution of the claims of the

Settlement Class Members. See Fed. R. Civ. P. 23(b)(3)(A)-(D); Amchem, 521 U.S at 617;

Philllps Petroleum Co. v. Shutts, 472 U.S. 797, 809 (1985) (a class action is the superior method

of proceeding when it allows the plaintiffs to pool claims that would be uneconom ical to litigate

individuallyl; Haynes v. f ogan Furniture, 503

detennining the best available method

F.2d 1 161, 1164-65 (7th Cir. 1974) (in

for resolving a dispute, the Court m ay consider the

tsimprobability that large num bers of class members would possess the initiative to litigate

individually''l; Henry v. Cash Today, Inc. , 199 F.R.D. 566, 573 (S.D. Tex. 2000) (noting the

superiority requirement was satisfied when many Settlement Class M em bers m ay be unaware of

12


their alleged claims or may not understand their alleged legal rights, and are thus unlikely to

initiate individual litigation).

Superiority focuses on ûçthe relative advantages of a class action suit over whatever other

form s of litigation m ight be realistically available to the plaintiffs.'' Sacred Heart Health Sys.,

Inc. v. Humana Military Healthcare Servs., lnc. , 601 F.3d 1 159, 1 1 83-84 (1 1th Cir. 2010). Here,

the advantages of certification for settlement are m any and clear. lndividual actions are simply

not realistic, given the relatively sm all recovery at issue and the high cost of expert testim ony

necessary to succeed on the merits. See Amchem, 52l U.S. at 617 (isgslmall recoveries do not

provide the incentive for any individual to bring solo action.''(internal quotation marks

omittedl). Along the same lines, individual actions are not likely because, absent this class

settlement, m ost consumers m ay not be aware of the alleged Safety Defects with their Class

Pistols. Accordingly, the Court prelim inarily finds that the superiority requirement is m et for

settlement pup oses.

ln m aking these tindings, the Court notes that, because this action is proposed for

settlem ent, the Court need not consider trial m anageability issues that m ight be presented in this

case. As the Supreme Court held in Amchem, when itgcjonfronted with a request for settlement-

only class certification, a district court need not inquire whether the case, if tried, would present

intractable management problem s . . . for the proposal is that there be no trial.'' 52 1 U .S. at 620.

See also Sullivan, 667 F.3d at 302-03 (holding that the concern for manageability, a central tenet

in the certification of a litigation class, is rem oved from the equation when certification concerns

a settlement class); Smith, 2010 WL 2401 149, at *3 (citing Amchem, 521 U.S. at 620); David v.

Am. Suzuki Motor Corp., No. 08-CV-22278, 2010 W L 1628362, at *3 (S.D. Fla. Apr. 15, 2010)

(in the context of proposed settlement classes, district courts may properly consider that there

will be no trial). Even though a settlement class must meet the requirements of Rule 23, the


t'settlement is a factor in the calculus,'' and therefore the certification inquiry is not the same in

the settlement context as when certitication is for the pup oses of trial. See Amchem, 521 U .S. at

619-22. Thus, while choice-of-law analyses may have presented manageability problems in

resolving claims in contested class and litigation proceedings, it is not a factor in the nationwide

settlement context that the Parties propose. Sullivan,

variations in state law largely dissipate when a

settlement class.'').

667 F.3d at 297 (ûllcjoncel'ns regarding

court is considering the certification of a

The Court recognizes that this proposed class settlem ent provides a m eans for

granting valuable relief to the proposed Settlement Class M em bers. Perhaps m ore importantly, it

will further make owners aware of the alleged Safety Defects, provide valuable safety training,

and give Settlement Class M embers the opportunity to return and remove their Class Pistols from

circulation.

8. The Court further finds, for purposes of settlement only, that: (a) Settlement

Class Members likely have a limited interest in individually prosecuting the claims at issue; (b)

the Court is satisfied with the Parties' representations that they are unaware of any other pending

litigation regarding the claims at issue by members of the Settlement Class', (c) it is desirable to

concentrate the claims in this forum; and (d) based on the statements and experience of the

Claim s Administrator's representatives at the June 23, 20l 5 hearing, the Court believes it is

unlikely that there will be difficulties encountered in administering the proposed settlement.

Pursuant to Federal Rule of Civil Procedure 23 and for settlement purposes only,

Plaintiff Chris P. Carter is prelim inarily designated as class representative for the Settlement

Class. For settlem ent purposes only, David Selby, 11 and Jolm Barrett of Bailey & Glasser, LLP,

and Todd W heeles of M orris, Haynes, W heeles, Knowles & N elson are preliminarily designated

as Class Counsel.


be finally

approved, the Parties shall not pursue any claims or defenses otherwise available to them, and no

person in the Settlement Class and no person ading or purporting to ad diredly or derivatively

Pending determination of whether the proposed settlement should

on behalf of Plaintiff or a Settlement Class M ember, or acting in a representative basis or in any

other capacity, shall comm ence, prosecute, intervene in, or participate in any lawsuit, action,

arbitration, or proceeding in any court, arbitration forum or tribunal asserting any of the Released

Claims against any of the Released Parties. However, this Stay/Bar of Proceedings shall not

apply to claims for death, personal injury, or damage to property other than to the Class Pistols

them selves.

Pending determination of whether the proposed settlement should be finally approved, all

Settlement Class Members are hereby preliminarily enjoined from directly, on a representative

basis or in any other capacity, commencing, prosecuting, intervening in, or participating as a

plaintiff or class member in any action, arbitration, or proceeding in any court, arbitration forum

or tribunal asserting any of the Released Claim s against any of the Released Parties.

1 1 . The Court recognizes that, pursuant to the Settlem ent Agreement, the Taurus

Companies retain the right to dispute that a class may be properly certified in this Action, or that

a class is reasonably ascertainable, should the proposed settlement not be finally approved. The

foregoing determinations regarding class certification are for purposes of settlement only.

Accordingly, preliminary certification of the Settlement Class shall not be deemed a concession

that certification of a litigation class is appropriate, nor are the Taunzs Com panies precluded

from challenging class certification in further proceedings in this Action or in any other action or

proceeding if the proposed settlem ent is not finalized or finally approved. If the proposed

settlement is not finally approved for any reason, the certification of the Settlem ent Class shall be

15


void and vacated, and the Action shall proceed as though the Settlement Class had never been

certified, without prejudice to any Party to either request or oppose class certification.

Claims Administration and Notice

12. The Court was introduced to and had discussions with Jeanne Finegan and James

Prutsman of the Heftler Claims Group ttll-leffler''l during the June 23, 2015 hearing. The Court

recognizes that M s. Finegan is an experienced and nationally-recognized expert conceming

notice in class actions, and that Heftler is experienced in adm inistering large and com plex class

action settlem ents.

For these and other reasons addressed during the June 23, 2015 hearing, the Court hereby

approves the Parties' retention of Heftler to perform the duties of the Claim s Adm inistrator as set

forth in the Settlement Agreement, including providing Notice to Settlem ent Class M embers, to

perfonn such other functions and duties as set forth in the Settlement Agreement, and to provide

such other administration services as are reasonably necessary to facilitate the proposed

settlement.

13.

reach potential Settlement Class Members, (b) the cost and effectiveness of giving notice by

Having considered, among other factors, (a) the means and methods available to

various methods, (c) the resources of the Parties, (c) the stake of each Settlement Class Member,

and (d) the possibility that certain Settlement Class Members might desire to exclude themselves

from the Settlement Class or appear individually, the Court finds that notice given in the fonn

and manner provided in the Settlement Agreem ent is the best practicable notice and is reasonably

calculated, under the circumstances, to apprise the Settlement Class Members: (i) of the

pendency and nature of this Action, (ii) of the definition of the Settlement Class preliminarily

certified; (iii) of the class claims, issues, and defenses and the terms of the proposed settlement;

(iv) of the right to appear and object tothe proposed settlement; (v) of the right to exclude


themselves from the Settlement Class; (vi) of the time and manner for requesting exclusion from

the Setllement Class; and (vii) that any judgment, whether favorable or not, will bind all

Settlement Class M embers who do not timely and properly exclude them selves from the

Settlem ent Class. The Court further tinds that the proposed notice methods, texts and

methodology are reasonable, thatthey constitute due, adequate, and suftseient notice to all

persons entitled to be provided with notice, and that they meet the requirements of the Federal

Rules of Civil Procedure, the United States Constitution (including Due Process), and all other

applicable rules or law.

14. Subject to the changes in paragraph 27 below, the Court hereby approves the

form, content and requirements of the Publication Notice and W ebsite Notice attached as

exhibits A and B to the Parties' Notice of Filing Proposed Class Notices gDE 1321. The Court

further approves the notice regim e set forth in the Settlement Agreem ent. The Claim s

Administrator shall begin publication of the Publication Notice, and the W ebsite Notice and

Safety Training shall be available on the Settlement W ebsite by no later than October 13, 2015.

The Parties shall, prior to the Final Approval Hearing, file proof of notice with the Court.

15. To return their Class Pistol and receive a monetary payment under one of the

benetits of the Settlem ent Agreem ent, Settlem ent Class M embers must complete and timely

subm it a Claim Fonn pursuant to the instructions provided. The Court hereby approves the form

and content of the Claim Form attached as Exhibit A to the Settlement Agreement (DE 123, pp.

56-571.

1 6. A1l costs of providing notice to the Settlement Class, processing Claim Form s,

m aking settlem ent paym ents, and otherwise adm inistering the settlement shall be paid by the

Taurus Companies as provided in the Settlement Agreement. The Court further notes that these


costs will be paid separate and apartfrom the benefts made available to Settlement Class

M embers under the proposed settlement, and not from a Skcommon fund.''

Exclusion / Ro pt O uts''

17. Settlement Class Members shall be bound by all determinations and orders

pertaining to the proposed settlement, including the release of all claims to the extent set forth in

the Settlem ent Agreem ent, whether favorable or unfavorable, unless such persons request

exclusion from the Settlement Class in a timely and valid mnnner, as provided below.

Settlement Class M embers who do not timely and validly request exclusion shall be bound even

if they have previously initiated or subsequently initiate individual litigation or other proceedings

against the Released Parties relating to the Released Claims as set forth in the Settlement

Agreement.

18. A Settlem ent Class M em ber wishing to m ake a request for exclusion from the

Settlement Class shall mail the request in written fonn, by first class m ail, postage prepaid, and

postmarked no later than the Opt-out and Objection Deadline of December 14, 2015, to the

Claims Administrator at the address specified in the Notice. Exclusion requests must: (i) be

signed by the Settlement Class Member for whom exclusion is requested; (ii) include the full

name, address, serial number of their Class Pistolts) and telephone number of the Settlement

Class Member requesting exclusion', and (iii) include substantially the following statement: 1'I

request to be excluded from the settlem ent in the Carter v. Forias Taurus action.'' No request

for exclusion will be valid unless all of the infonnation described above is included.

19. No Settlem ent Class M ember, or any Person acting on behalf of or in concert with

that Settlement Class M ember, may exclude any other Settlem ent Class M ember from the

Settlement Class and no Person shall be deemed opted-out of the Settlement Class through any

rted lsmass'' or çsclass'' opt-outs.PurPO

18


Any Settlement Class Member who timely and properly submits a Request for

Exclusion as set forth above shall not (a) be bound by any orders or judgments entered in

connection with the settlement; (b) be entitled to any relief under the settlement; (c) gain any

20.

rights by virtue of the settlement; (d) be entitled to object to any asped of the proposed

settlement; or (e) seek to intervene.

21. The Claims Administrator shall promptly provide counsel for the Parties with

copies of any requests for exclusion. Plaintiff shall file a list of al1 of who have opted out with

the Court no later than January 13, 2016.

Obiections

22. Any Settlement Class M em ber who has not opted outin accordance vvith the

tenus of this Order may object to the proposed settlement and/or to the application of Class

Counsel for an award of attomeys' fees and costs and/or the request for an incentive award to

Plaintiff, by filing a written objection with the Clerk of Court, in accordance with the

requirements set forth below, by the Opt-out and Objection Deadline of December 14, 2015.

Any Settlement Class Member who does not provide a written objection in the manner described

below shall be deemed to have waived any objection and shall forever be foreclosed from

making any objection to the fairness, reasonableness, or adequacy of the proposed settlement, or

any award of any attorneys' fees and/or incentive award.

Settlement Class Members must make any objection in writing and file it with the

Court by December 14, 2015. The objedion must also be mailed to each of the following,

postmarked no later than the last day to tile the objection: (i) Class Counsel - David L. Selby, 1I,

Bailey & Glasser, LLP, 3000 Riverchase Galleria, Suite 905, Binningham , Alabama 32544; and

(ii) the Taurus Companies' Counsel - John P. Marino, Smith, Gambrell & Russell, LLP, 50

North Laura Street, Suite 2600, Jacksonville, Florida 32202. The objection must: (a) include the

19


name, address, telephone number, and, if available, the email address of the Settlement Class

Member objecting, and if represented by counsel, of his/her/its counsel; (b) state a1l objections

specifically and in writing; (c) state whether he/she intends to appear at the Final Approval

Hearing, either with or without counsel and provide a list of peopte who will be called to testify,

if any; (d) include a statement of his/her membership in the Settlement Class, including al1

information required by the Claim Form; and (d) include a detailed list of any other objections

submitted by the Settlement Class M ember, or his/her counsel, to any class actions submitted in

any court, whether state or otherwise, in the United States in the previous five (5) years and any

compensation received for such objections. If the Settlement Class Member or his/her counsel

has not objected to any other class action settlement in any court in the United States in the

previous five (5) years, he/she shall affirmatively state so in the written materials provided in

connection with the objection to this Settlement.

Only those specific objections, grounds and documents that comply with the

Further, any Settlement Classrequirements in paragraph 23 may be presented to the Court.

M ember who intends to appear at the Final Approval Hearing, and any counsel that intends to

appear on behalf on any Settlement Class M em ber, must file with the Court and serve on all

Parties (as set forth above) a Notice of Intent to Appear.

25. Any Settlement Class M ember who

consent to deposition by Class Counsel and/or Defendants' Counsel prior to the Final Approval

submits a timely written objection shall

Hearing.

26.

Settlement in compliance with the requirements set forth in this Order shall be deemed to have

waived any such objection by appeal, collateral attack or otherwise.

Any Settlement Class Member who does not make his/her/its objection to the

20


27. By August 3, 2015, the parties are ORDERED to amend and refile the W ebsite

Notice prior to publication to inform potential objedors that: (1) they must also file any written

objections with the Court by the Objection Deadline and (2) if the Settlement Class Member or

his/her counsel has not objected to any other class action settlement in any court in the United

States in the previous five (5) years, he/she shall affirmatively state so in the m'itten materials

flled in connection with the objection to this Settlement.

Final Approval Hearinz

28. The Final Approval Hearing pursuant to Federal Rule of Civil Procedure 23(e) is

hereby scheduled to be held before the Court on January 20, 2016 at 10 mm. for the following

PUITOSCS:

to finally detennine whether the applicable prerequisites for settlement

class action treatment under Fed. R. Civ. P, 23(a) and (b) are met;

(b) to detennine whether the Settlement is fair, reasonable and adequate, and

should be approved by the Court;

to determine whether the judgment asprovided under the Settlement

Agreement should be entered, including a bar order prohibiting Settlement

Class M embers from further pursuing claims released under the

Settlement Agreement;

(d) to consider the application for an award of attomeys' fees and costs of

Class Counsel;

to consider the application for an incentive award to the Class

Representative; and

(9 to consider and rule upon such other mattersas the Court may deem

appropriate.


Submissions in support of final approval of the m oposed settlement and the

Settlement Agreement shall be filed with the Court no later than January 6, 2016. The Final

Approval Hearing may be postponed, adjoumed, or continued by Court order without further

notice to the Settlement Class. At or following the Final Approval Hearing, the Court may enter

a Final Approval Order and Judgment in accordance with the Settlement Agreement that will

adjudicate the rights of the Settlement Class Members with respect to the Released Claims being

settled.

Settlement Class M embers do not need to appear at the Final Approval Hearing or

take any other action to indicate their approval of the proposed settlement.

Further M atters

All discovery and other pretrial proceedings between Plaintiff and the Taunls

Companies in this Action are STAYED until further order of the Court, except reasonable

confinuatory discovery and such actions asmay be necessary to implement the Settlement

Agreement and comply with this Order.

32. No discovery with regard to the Settlement Agreement or the proposed settlement

and its administration shall be pennitted by any Settlement Class M ember or any other person,

other than as the Court m ay direct.

33. ln the event the Court materially modifies or does not approve the settlement, or

the Settlement Agreem ent is tenuinated pursuant to its terms for any reason, or for any other

reason the Effective Date does not occur, then (i) the Settlement Agreement shall be null and

void, including any provisions relating to the award of attorneys' fees and expenses, and shall

have no further force and effect with respect to the Parties, and shall not be used in this action or

in any other action or proceeding for any purpose; (ii) a11 negotiations, proceedings, documents

prepared, and statements made in colmection therewith shall be without prejudice to the Parties,


shall not be deemed or constnled to be an admission by any Party of any act, m atter, or

proposition, and shall not be used in any manner or for any purpose in this Action or any other

adion or pxoceeding, provided, however, the termination of the Settlem ent Agreement shall not

shield from subsequent discovery any factualinfonnation provided in connection with the

negotiation of the Settlement Agreement that would ordinarily be discoverable but for the

attempted settlement; (iii) this Order shall be vacated and of no further force or effect

whatsoever, as if it had never been entered; and (iv) any Party may elect to move the Coul't to

implement the provisions of this paragraph, and the non-moving Party and that Party's counsel

shall not oppose any such m otion.

34. The Parties are authorized, without needing further approval from the Court, to

agree to and adopt such amendments, modifcations and expansions of the Settlement Agreement

and its exhibits that: (a) are consistent in al1 material respects with this Preliminary Order and

Judgment; and (b) do not limit the rights of the Settlement Class Members.

The Court retains jurisdiction to consider a11 further matters arising out of or

connected with the proposed settlement. Therefore, to sum marize the foregoing tindings and

Orders, it is

ORDERED THAT

The Parties' Joint M otion and Supporting M em orandum for Prelim inary Approval

of Class Adion Settlement gDE 1231 is GRANTED.

The Court prelim inarily finds that the proposed settlem ent and the Settlement

Agreement are fair, reasonable, and adequate and that notice of the proposed settlement should

be directed to potential class m embers.

23


For purposes of settlement of this Action, and pursuant to Federal Rule of Civil

Procedure 23, the Court finds that the Rule 23(a) and (b)(3) requirements have preliminarily

been satisfied, and CERTIFIES the following Settlement Class:

Al1 Persons or entities of the United States, Comm onwealth of Puerto Rico, U.S.

Virgin Islands, and Guam who own one or more of the following Taurus-branded

firearms on the date of preliminary approval: PT-I 1 1 M illennium; PT-132

M illennium; PT-138 M illennium; PT-140 M illennium; PT-145 M illennium; PT-

745 M illennium; PT-609; PT-640; and PT-24/7.

Excluded from the Settlement Class are a11 state, local or federal governments,

bodies or agencies, the District Court Judge and M agistrate Judge to whom the

lawsuit is assigned and any member of their staffs and immediate families, as well

as a11 persons who validly request exclusion from the Settlement Class.

Pursuant to Federal Rule of Civil Procedure 23 and for settlement purposes only,

Plaintiff Cluis P. Carter is preliminarily designated as class representative for the Settlement

Class.

Having considered the factors in Rule 23(g) and for settlement purposes only,

David Selby, 11 and Jolm Barrett of Bailey & Glasser, LLP, and Todd W heeles of M onis,

Haynes, W heeles, Knowles & Nelson are preliminarily designated as Class Counsel.

6) The Court approves the parties' retention of the Heffler Claims Group as Claims

Administrator.

By August 3, 2015, the parties must am end and refile the W ebsite Notice prior

to publication to inform potential objectors of the following two requirements: (1) they must also

file any written objections with the Court by the Objection Deadline and (2) if the Settlement

Class Member or his/her counsel has not objected to any other class action settlement in any

court in the United States in the previous five (5) years, he/she shall affirmatively state so in the

written materials filed in connection with the objection to this Settlement.

The Court hereby approves the fonu and content of the Claim Fonu attached as

Exhibit A to the Settlement Agreement (DE 123, pp. 56-571.

24


9) The Claims Administrator shall begin publication of the Publication Notice, and

the W ebsite Notice and Safety Training shall be available on the Settlement W ebsite by no later

than October 13, 2015.

10) The Parties shall by no later than January 13, 2016, tile proof of notice with the

Coud.

Settlement Class M embers shall be bound by all detenninations and orders

pertaining to the Final Approval Order, including the release of a11 claim s, unless such persons

timely t5le valid written requests for exclusion by Decem ber 14, 2015.

12) Settlement Class Members must make any objection in writing and file it with the

Court by the Opt-out and Objection Deadline of December 14. 2015.

13) Any Settlement Class Member who does not make his/her/its objection to the

Settlement in compliance with the requirements set forth in this Order shall be deemed to have

waived any such objedion by appeal, collateral attack or otherwise.

14) Any Settlement Class Memberwho submits a timely written objection shall

consent to deposition by Class Counsel and/or Defendants' Counsel prior to the Final Approval

Hearing.

15) The Final Approval Hearing pursuant to Federal Rule of Civil Procedure 23(e) is

hereby scheduled to be held before the Court on January 20, 2016 at 10 a.m. for the following

PufP0SeS:

(a) to finally determine whether the applicable prerequisites for settlement classaction treatment under Fed. R. Civ. P. 23(a) and (b) are met;(b) to detennine whether the Settlement is fair, reasonable and adequate, and shouldbe approved by the Court;

(Q to determine whether the judgment as provided under the Settlement Agreementshould be entered, including a bar order prohibiting Settlem ent Class M embers from

further pursuing claims released under the Settlement Agreement;

(d) to consider the application for an award of attorneys' fees and costs of ClassCounsel;

(e) to consider the application for an incentive award to the Class Representative; and

25


(9 to consider and rule upon such other matters as the Court may deem appropriate.

Plaintiff shall file a list of all of who have opted out with the Court no later than

January 13, 2016.

Submissions in support of final approval of the proposed settlem ent and the

Settlement Agreement, and any motions for attorneys' fees or an incentive award to Plaintiff,

shall be filed with the Court no later than January 6, 2016.

18) All discovery and other pretrial proceedings between Plaintiff and the Taunls

Companies in this Action, including the Motion to Compel (DE 1011 are STAYED until further

order of the Court.

Settlement Class Members are hereby preliminarily

enjoined from directly, on a representative basis or in any other capacity, commencing,

prosecuting, intelwening in, or participating as a plaintiff or class member in any action,

arbitration, or proceeding in any court, arbitration forum or tribunal asserting any of the Released

Claims against any of the Released Parties.

PDONE AND ORDERED in Miami, Florida, this 30 day of July, 2015.

*

#

PATRICIA A . SEI Z

UNITED STATES DISTRICT JUDGE

Pending final approval, a1l

cc: Counsel of Record

26


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